CENTRAL INTELLIGENCE AGENCY AND WILLIAM J. CASEY, DIRECTOR OF
CENTRAL INTELLIGENCE, PETITIONERS V. JOHN CARY SIMS AND SIDNEY M.
WOLFE
No. 83-1075
In the Supreme Court of the United States
October Term, 1983
On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit
Brief for the Petitioners
TABLE OF CONTENTS
Opinions below
Jurisdiction
Statutory provisions involved
Statement
Summary of argument
Argument:
The Freedom of Information Act does not require
the Central Intelligence Agency to disclose the
identities of sources of intelligence-related
information
A. The term "intelligence sources" should be
given its plain meaning
B. The court of appeals' definition of
"intelligence sources" produces results that
Congress could not have intended
Conclusion
Appendix
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-16a) is reported
at 709 F.2d 95. The opinions and order of the district court (Pet.
App. 21a-34a) are unreported. An earlier opinion of the court of
appeals (Pet. App. 35a-64a) is reported at 642 F.2d 562. One of the
earlier opinions of the district court (Pet. App. 73a-93a) is reported
at 479 F. Supp. 84; the other earlier opinions and orders of the
district court (Pet. App. 66a-72a, 94a-97a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on June 10, 1983
(Pet. App. 19a-20a). A petition for rehearing was denied on August
17, 1983 (Pet. App. 17a). On November 9, 1983, the Chief Justice
extended the time in which to file a petition for a writ of certiorari
to December 15, 1983, and on December 5, 1983, the Chief Justice
further extended the time in which to file a petition for a writ of
certiorari to December 29, 1983. The petition was filed on that date
and was granted on March 5, 1984. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
Portions of the Freedom of Information Act, 5 U.S.C. 552, the
National Security Act of 1947, 50 U.S.C. 401 et seq., and the Central
Intelligence Agency Act of 1949, 50 U.S.C. 403a et seq., are
reproduced at App., infra, 1a-3a.
QUESTION PRESENTED
Whether the Central Intelligence Agency must disclose the identity
of a source of intelligence information under the Freedom of
Information Act whenever it cannot demonstrate that it had to
guarantee confidentiality in order to obtain the kind of information
that the source supplied, even though Section 102(d)(3) of the
National Security Act of 1947, as incorporated in Exemption 3 of the
FOIA, exempts "intelligence sources" from disclosure.
STATEMENT
1. Respondents, invoking the Freedom of Information Act (FOIA), 5
U.S.C. 552, filed a request with the Central Intelligence Agency
seeking certain information about a CIA project known as MKULTRA.
MKULTRA was initiated in the 1950's in "response to possible use by
the Soviets and the Chinese of chemical and biological agents as
instruments of interrogation and brainwashing" (Pet. App. 37a
(footnote omitted); see id. at 73a). The project involved "research
into 'chemical, biological and radiological materials capable of
employment in clandestine operations to control human behavior'" (id.
at 21a (footnote and citation omitted)). See also Pet. App. 89a
(affidavit of Director of Central Intelligence Turner).
MKULTRA research was conducted by a large number of private
scientists, in the United States and abroad, affiliated with
universities, research foundations, and similar institutions (Pet.
App. 66a, 89a). At least 80 institutions and 185 private researchers
participated (id. at 36a). A total of 149 subprojects were funded by
the CIA (I C.A. App. 14-61). /1/
Most of these subprojects involved legitimate research into a
variety of chemical, biological, psychological, and sociological
subjects. In a few of the subprojects, researchers surreptitiously
administered drugs to unwitting subjects. This wholly improper
conduct is now expressly forbidden by executive order. Exec. Order
No. 12,333, Section 2.10, 46 Fed. Reg. 59941, 59952 (1981). See also
Project MKULTRA, the CIA's Program of Research in Behavioral
Modification: Joint Hearing Before the Select Comm. on Intelligence
and the Subcomm. on Health and Scientific Research of the Senate Comm.
on Human Resources, 95th Cong., 1st Sess. 16, 17, 35 (1977) (Testimony
of Director of Central Intelligence Turner) (hereinafter cited as
Project MKULTRA Hearing). The CIA has attempted to notify the persons
who were unwittingly subjected to tests. See id. at 36.
The MKULTRA project was examined in 1963 in a report from the
Inspector General of the CIA to the Director of Central Intelligence
(II C.A. App. 118-145). Subsequently, congressional committees and a
Presidential commission thoroughly examined the project, taking
extensive testimony from both the Director of Central Intelligence and
the former CIA personnel who had supervised the project. These
inquiries gave "broad publicity" (Pet. App. 37a) to MKULTRA and the
allegations of abuses connected with it. See S. Rep. 94-755, 94th
Cong., 2d Sess., Bk. I, at 389-392 (1976); Report to the President by
the Commission on CIA Activities Within the United States 226 (June
1975); Human Drug Testing by the CIA, 1977: Hearings on S. 1893
Before the Subcomm. on Health and Scientific Research of the Senate
Comm. on Human Resources, 95th Cong., 1st Sess. (1977); Project
MKULTRA Hearing, supra.
2. Respondents sought the grant proposals and contracts awarded
under the MKULTRA program and the names of the institutions and
individuals that performed research. The CIA made available to
respondents all of the grant proposals and contracts. The CIA also
contacted the institutions that had performed research, and
approximately two-thirds of them voluntarily disclosed their
identities to the public. The Agency accordingly disclosed them to
respondents. Pet. App. 39a, 73a-74a.
The CIA cited Exemptions 3 and 6 of the FOIA, 5 U.S.C. 552(b)(3)
and (6), as the bases for not releasing the names of the other
institutions and the individual researchers. /2/ Only the Exemption 3
claim is now at issue. Exemption 3 of the FOIA provides that an
agency need not disclose "matters that are * * * specifically exempted
from disclosure by statute * * * provided that such statute * * *
refers to particular types of matters to be withheld" (5 U.S.C.
552(b)(3)(B)). The statute on which the CIA relied is Section
102(d)(3) of the National Security Act of 1947, 50 U.S.C. 403(d)(3).
Section 403(d)(3) provides in part:
(T)he Director of Central Intelligence shall be responsible
for protecting intelligence sources and methods from
unauthorized disclosure * * *.
3. Respondents then brought this action under the FOIA in the
United States District Court for the District of Columbia. See 5
U.S.C. 552(a)(4)(B). They sought to compel disclosure of the names
withheld by the CIA. The district court ordered disclosure of these
names, apparently reasoning that the term "intelligence sources" in 50
U.S.C. 403(d)(3) did not include the MKULTRA researchers, of if it
did, Section 403(d)(3) was not specific enough to qualify as an
Exemption 3 statute (see Pet. App. 77a-79a).
The court of appeals vacated the district court's order and
remanded for reconsideration (Pet. App. 35a-64a). The court observed
that it had consistently held that Section 403(d)(3) "qualifies as a
withholding statute under Exemption 3" (id. at 44a). The court also
noted that in its numerous previous decisions dealing with Exemption 3
and Section 403(d)(3), it had assumed that the phrase "intelligence
sources and methods" has "a plain meaning" (ibid.). But upon further
consideration of the "relevant statutory enactments" (see id. at 47a)
-- which the court identified as the FOIA, the National Security Act
of 1947, and the Central Intelligence Agency Act of 1949, 50 U.S.C.
403a et seq. -- the court concluded that the phrase "intelligence
sources and methods" is in fact "ambiguous" (Pet. App. 49a) and must
be interpreted in a way that reflects "Congress's sensitivity to the
need for discrimination in identifying particular types of matters
exempted from disclosure" (id. at 47a).
The court of appeals acknowledged that the CIA's proposed
definition of "intelligence sources" -- essentially, individuals or
entities that provide intelligence information (see Pet. App. 46a) --
was a supportable interpretation of the phrase. But instead of
accepting this definition, the court decided that "(a)nalysis should *
* * focus on the practical necessity of secrecy * * * (and should)
avoid an overbroad discretionary standard" (id. at 50a). The court
then concluded (ibid.):
(A)n "intelligence source" is a person or institution that
provides, has provided, or has been engaged to provide the CIA
with information of a kind the Agency needs to perform its
intelligence function effectively, yet could not reasonably
expect to obtain without guaranteeing the confidentiality of
those who provide it.
Judge Markey, in an opinion concurring in part and dissenting in
part, urged that the district court's rejection of the Agency's
Exemption 3 claim be affirmed but remarked (Pet. App. 62a): "Whatever
may be said of the wisdom or morality of the MKULTRA program and its
operation, the Agency's need for the research data "to perform its
intelligence function effectively' has not been challenged on this
record."
4. On remand, the district court began by explicitly rejecting
respondents' contention that the MKULTRA research was not "needed to
perform the CIA's intelligence function" (Pet. App. 22a). The court
explained (id. at 22a-23a): "In view of the agency's concern that
potential foreign enemies could be engaged in similar research and the
desire to take effective counter-measures, * * * (the Agency) could
reasonably determine that this research was needed for its
intelligence function." The district court also rejected respondents'
contention that some of the researchers were not intelligence sources
because they provided "materials or supplies," rather than
"information," to the CIA (id. at 22a); the court reasoned that "it
is irrelevant whether a source tells the CIA how to synthesize a
substance or synthesizes the substance itself and sells it to the CIA
(because) in either case, what is essentially being provided is
information" (ibid.).
The district court then turned to the question whether the CIA
could show, as the court of appeals' definition requires, that it
could not reasonably have expected to obtain the information supplied
by the MKULTRA sources without guaranteeing confidentiality to them
(Pet. App. 23a). The district court acknowledged that the Agency
considered the relationships between it and the MKULTRA researchers to
be confidential (ibid.). The district court further noted that "(f)or
understandable reasons, the Agency wished its interest in this subject
matter kept secret, and feared that disclosure would jeopardize its
ability to continue its research" (id. at 24a). But the district
court ruled that this was not sufficient to satisfy the court of
appeals' test because "the chief desire for confidentiality was on the
part of the CIA. * * * (C)onfidentiality was normally guaranteed * *
* solely to protect the CIA" (ibid.). In addition, the court
remarked, many MKULTRA projects involved research that "goes on
constantly at many places" and therefore "could have been done without
a guarantee of confidentiality" (id. at 26a).
After reviewing the Agency's submissions about particular cases,
the district court found that some of the researchers had sought, and
received, express promises of confidentiality from the Agency. The
court ruled that the identities of these researchers and the
institutions with which they had been associated need not be disclosed
(Pet. App. 26a). The district court also exempted other researchers
from disclosure for various reasons (see id. at 26a-27a), 30a-31a).
In total, the court ordered the disclosure of the names of 47 of the
researchers and the institutions with which they had been affiliated
(id. at 21a-34a).
5. Both sides appealed, and a divided panel of the court of appeals
reversed the district court's "determination regarding which of the
individual researchers satisfy the 'need-for-confidentiality' portion
of the definition of 'intelligence source' promulgated in" the court
of appeals' earlier opinion. The court affirmed the district court's
ruling in other respects. Pet. App. 11a.
The court of appeals peremptorily rejected the Agency's suggestion
that it reconsider the portion of the definition requiring the Agency
to show that it had to guarantee confidentiality in order to obtain
the information supplied by a source (Pet. App. 4a). Instead, the
court of appeals criticized the district court for not following this
aspect of the definition closely enough. The court of appeals
remarked that "the (district) court's attention to questions of this
order was deflected by its interest in whether the agency had, in
fact, promised confidentiality to individual researchers" (id. at 5a).
The court of appeals held that the district court's decision
automatically to exempt from disclosure those researchers to whom the
CIA had promised confidentiality was erroneous: "Proof that the CIA
did or did not make promises of secrecy (either express or tacit) to
specific informants * * * (cannot) be dispositive of the question
whether a given informant qualifies as an 'intelligence source'" (id.
at 6a).
Specifically, the court of appeals ruled that even a source of
intelligence information who received an express promise of
confidentiality would have to be revealed if the source requested such
a promise only because he was "unreasonably and atypically leery of
providing the agency with innocuous information" (Pet. App. 6a). The
court reasoned that "if the agency readily and openly could have
obtained, from other sources, data of the sort (such a source)
provided, he would not constitute an 'intelligence source'" (ibid.
(footnote omitted)). The court also remarked that allowing the Agency
to refuse to disclose the identities of all sources of intelligence
that requested confidentiality could permit "widespread evasion of the
letter and spirit of the FOIA" (id. at 7a) because it "would (be) * *
* easy for the agency" to suggest to intelligence sources "that they
sign a form expressing their desire for secrecy" (id. at 6a n.7).
Judge Bork wrote a separate opinion, concurring in part and
dissenting in part (Pet. App. 12a-16a). He criticized several aspects
of the court of appeals' definition of "intelligence sources," urging
in particular that there is "no reason to think that section 403(d)(3)
was meant to protect sources of information only if secrecy was needed
in order to obtain the information." Specifically, Judge Bork
explained, "(t)he mere fact that the CIA pursues certain inquiries
tells our adversaries much that there is no reason to think Congress
intended them to know." He reasoned that "(o)ne need not be an expert
in intelligence work to know that it is often possible to deduce what
a person is doing, thinking, or planning by knowing what question he
is asking or what information he is gathering. That is true even when
the answers and information are publicly available." Id. at 15a.
Judge Bork also strongly criticized the majority's conclusion that
the FOIA sometimes requires the CIA to break a promise of
confidentiality it has given to an intelligence source. He stated
(Pet. App. 13a-14a):
Many persons who expect pledges of confidentiality to be
honored will be shocked to learn, long after they give
information in return for such a promise, that their identities
will be disclosed. * * * (I)n this very case, retrospective
application of (the majority's definition) * * * may be
profoundly unjust. It will certainly be so if it results in the
disclosure of the identities of * * * researchers who fully, and
justifiably, expected the government to keep its commitment and
to protect them from the wide range of dangers that may have
concerned them when they insisted on confidentiality. This is
not an honorable way for the government of the United States to
behave, and the dishonor is in no way lessened because it is
mandated by a court of the United States.
Judge Bork urged that by authorizing courts to force the CIA to
break its promises of confidentiality, the majority's approach
"produces pernicious results. * * * Because of the ever-present
possibility of a future breach of trust ordered by the judiciary under
the vague standard laid down today, the CIA will probably lose many
future sources of valuable intelligence" (Pet. App. 13a-14a). Judge
Bork remarked that under the court of appeals' definition of
"intelligence sources," "individuals who give information to the CIA
on the understanding that their names will be kept secret cannot rely
on the promise of confidentiality if the information turns out to be
the sort the CIA can get elsewhere without promising secrecy,
something the sources of the information will often not be in a
position to know. There is, moreover, no guarantee that a judge,
examining the situation years later and deciding on the basis of a
restricted record, will come to an accurate conclusion" (id. at 13a).
Judge Bork then concluded (ibid.):
The CIA and those who cooperate with it need and are entitled
to firm rules that can be known in advance rather than vague
standards whose application to particular circumstances will
always be subject to judicial second-guessing. Our national
interest, which is expressed in the authority to keep
intelligence sources and methods confidential, requires no less.
The court of appeals denied the CIA's petition for rehearing and
suggestion of rehearing en banc. Judges Wilkey, Bork, and Scalia
voted in favor of rehearing en banc. Pet. App. 18a.
SUMMARY OF ARGUMENT
A. The court of appeals' decision is inconsistent with the plain
meaning of 50 U.S.C. 403(d)(3), which protects "intelligence sources"
from disclosure without limitation or qualification. The district
court specifically ruled that the MKULTRA project was within the scope
of the Central Intelligence Agency's intelligence function, and the
court of appeals did not question that ruling. Thus, the MKULTRA
researchers were, literally, sources of intelligence information.
That should have been the end of the inquiry.
Nothing in the legislative history of Section 403(d)(3) suggests
that the term "intelligence sources" should be given anything other
than its plain meaning. On the contrary, the legislative history
shows that Congress was aware that the CIA would derive intelligence
from a large number of sources, and that these sources would be very
diverse in character. Nonetheless, Congress did not attempt to
differentiate among sources of intelligence information; it simply
protected "intelligence sources" from disclosure. Moreover, Congress
was acutely aware of the importance of secrecy to the
intelligence-gathering process. Indeed, some of the congressional
hearings on Section 403(d)(3) were held in secret and were only
recently declassified.
The court of appeals appears to have arrived at its narrow
construction of the term "intelligence sources" by interpreting
Section 403(d)(3) in a way that would reflect what the court
considered to be the pro-disclosure philosophy of the Freedom of
Information Act. This is a fundamental error. Exemption 3 of the
FOIA incorporates by reference the exemptions from disclosure
contained in the statutes to which it refers, and the legislative
history of Exemption 3 expressly identifies Section 403(d)(3) as one
of the statutes that is incorporated by reference. The disclosure of
intelligence sources is therefore governed not by the "spirit" of the
FOIA but by Section 403(d)(3) -- a statute enacted shortly after World
War II in a climate quite different from that which prevailed at the
time of the FOIA.
B. In addition, the court of appeals' definition of "intelligence
sources" leads to results that Congress could not possibly have
intended. In the intelligence area, because the stakes are so high,
it is crucially important to the CIA that it be able to give its
sensitive intelligence sources as absolute a guarantee of
confidentiality as possible, and that it be perceived by potential
sources as being able to keept its commitments. "The Government has a
compelling interest in protecting both the secrecy of information
important to our national security and the appearance of
confidentiality so essential to the effective operation of our foreign
intelligence service." Snepp v. United States, 444 U.S. 507, 509 n.3
(1980), quoted in Haig v. Agee, 453 U.S. 280, 307 (1981)(emphasis
added). The court of appeals' approach -- by requiring the CIA to
reveal the identity of a source of intelligence information whenever a
court determines, after the fact, that the Agency could have obtained
the same kind of information without guaranteeing confidentiality --
would necessarily undermine the CIA's efforts to assure potential
sources that their identities will not be revealed under circumstances
that could cause them great harm.
Moreover, the court of appeals' definition would require the Agency
to disclose intelligence sources whenever the information they provide
also happens to be in the public domain. This, too, would damage the
Agency in a number of ways: by revealing to hostile foreign powers
the subjects in which the Agency is interested; by making it
difficult for the Agency to obtain information that, while
theoretically available to the public, is far more easily obtained
from a source that insists on confidentiality; and perhaps by
requiring the Agency to disclose the identity of even a very sensitive
source, if that source happened also to provide information that the
CIA could have obtained without promising confidentiality.
The legislative history of Section 403(d)(3) shows that Congress
understood that the Agency would rely heavily on intelligence sources
of the kind that the court of appeals' definition would require the
Agency to disclose. There is no indication that Congress intended to
exclude such sources from the unqualified protection it afforded to
"intelligence sources" in Section 403(d)(3). In sum, Congress was
aware that intelligence information would be provided by numerous and
diverse sources, and it chose to enact an unqualified measure
protecting "intelligence sources" from disclosure. There is no reason
to give that term anything other than its literal meaning.
ARGUMENT
THE FREEDOM OF INFORMATION ACT DOES NOT REQUIRE THE CENTRAL
INTELLIGENCE AGENCY TO DISCLOSE THE IDENTITIES OF SOURCES OF
INTELLIGENCE-RELATED INFORMATION
A. The Term "Intelligence Sources" Should Be Given Its Plain Meaning
In this case, as in another Freedom of Information Act case
recently decided by the Court, "(t)he plain language of the statute *
* * is sufficient to resolve the question presented" (United States v.
Weber Aircraft Corp., No. 82-1616 (Mar. 20, 1984), slip op. 6).
1. The only issue in this case is the meaning of the term
"intelligence sources" in Section 102(d)(3) of the National Security
Act of 1947, 50 U.S.C. 403(d)(3). Exemption 3 of the FOIA provides
that the FOIA does not require an agency to disclose "matters that are
* * * specifically exempted from disclosure by statute * * * provided
that such statute * * * refers to particular types of matters to be
withheld" (5 U.S.C. 552(b)(3)(B)). It is beyond dispute that Section
403(d)(3) is one of the statutes referred to by Exemption 3; the
court of appeals twice acknowledged this "well-established" point
(Pet. App. 2a n.1; see id. at 44a), and respondents have not
contended otherwise.
Indeed, the legislative history of Exemption 3 explicitly
identifies Section 403(d)(3) as a principal example of an Exemption 3
statute. See H.R. Rep. 94-880, 94th Cong., 2d Sess., Pt. 2, at 15 n.2
(1976). See also H.R. Rep. 93-1380, 93d Cong., 2d Sess. 12 (1974);
S. Rep. 93-854, 93d Cong., 2d Sess. 16 (1974); S. Rep. 98-305, 98th
Cong., 1st Sess. 7 n.4 (1983). And the courts of appeals have
consistently held that Section 403(d)(3) is an Exemption 3 statute.
See, e.g., Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982);
Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1978), cert. denied, 445
U.S. 927 (1980); National Commission on Law En orcement and Social
Justice v. CIA, 576 F.2d 1373, 1376 (9th Cir. 1978). Section
403(d)(3) specifically authorizes the Director of Central Intelligence
to protect "intelligence sources and methods" from disclosure. It
follows that the FOIA does not require the disclosure of the identity
of any entity that is an "intelligence source" within the meaning of
Section 403(d)(3).
2. a. The court of appeals did not appear to deny that the MKULTRA
researchers were, literally, sources of intelligence. The district
court specifically ruled that the CIA "could reasonably determine that
(the MKULTRA) research was needed for its intelligence function" (Pet.
App. 22a-23a), and the court of appeals did not question this ruling.
Indeed, on the first appeal, Judge Markey, who would have ordered the
researchers' identities disclosed without further proceedings,
nonetheless acknowledged that "the Agency's need for the research data
"to perform its intelligence function effectively' has not been
challenged on this record" (id. at 62a).
The MKULTRA researchers were, therefore, "intelligence sources"
within the literal meaning of that term. That should have been the
end of the inquiry. This Court has frequently emphasized that the
plain language of a statute is the surest guide to Congress's
intentions (see, e.g., United States v. Rodgers, No. 83-620 (Apr. 30,
1984), slip op. 4; Steadman v. SEC, 450 U.S. 91, 97 (1981)), and
there is no reason to believe that Congress meant the words of Section
403(d)(3) to have something other than their plain meaning -- that all
sources of intelligence are protected from disclosure. "Absent a
clearly expressed legislative intention to the contrary," the
"language of the statute itself" must "ordinarily be regarded as
conclusive." Consumer Product Safety Commission v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980). In this case, there is nothing approaching
"the kind of compelling evidence of congressional intent that would be
necessary to (warrant) * * * look(ing) beyond the plain statutory
language" (Weber Aircraft Corp., slip op. 9).
Congress did not say -- as the court of appeals has held -- that
the Director of Central Intelligence is authorized to protect
intelligence sources only if such protection is needed to obtain
information that otherwise could not be obtained. Nor did Congress
say that only confidential or nonpublic intelligence sources are
protected. In other provisions of the FOIA and in the Privacy Act, a
related statute, Congress has protected "confidential source(s),"
sources of "confidential information," and sources that provided
information under an express promise of confidentiality. See 5 U.S.C.
552(b)(7)(D); 5 U.S.C. 552a(k)(2) and (5). But Section 403(d)(3)
contains no such language; Congress simply protected all sources of
intelligence.
Indeed, as the court of appeals acknowledged in its first opinion
in this case, that court's prior decisions dealing with Section
403(d)(3) and Exemption 3 "simply assumed the phrase ('intelligence
sources') to have a plain meaning" (Pet. App. 44a). And in subsequent
cases in which the definition it devised in this case had apparently
not been brought to its attention, the District of Columbia Circuit
has continued to give the term "intelligence sources" its plain
meaning. See, e.g., Afshar v. Department of State, 702 F.2d 1125,
1130 (1983) ("The Freedom of Information Act bars the courts from
prying loose from the government even the smallest bit of information
that * * * would disclose intelligence sources or methods.");
Gardels, 689 F.2d at 1104.
b. While the legislative history of Section 403(d)(3) does not
specifically address the meaning of the term "intelligence sources and
methods" -- presumably because Congress did not see any ambiguity in
the phrase -- it suggests no reason whatever to doubt that Congress
intended to give the Director of Central Intelligence broad power to
protect the secrecy of the intelligence process. The National
Security Act of 1947 was enacted shortly after World War II. Section
403 established the CIA and empowered it, among other things, "to
correlate and evaluate intelligence relating to the national security"
(50 U.S.C. 403(d)(3)). The legislative history of Section 403 shows
that Congress was concerned about reports of shortcomings in American
intelligence before Pearl Harbor and during World War II and was
determined to improve the nation's capacity to gather and analyze
intelligence in peacetime as well as in war. See, e.g., S. Rep. 239,
80th Cong., 1st Sess. 2 (1947); H.R. Rep. 961, 80th Cong., 1st Sess.
3-4 (1947); 93 Cong. Rec. 9444 (1947). See also Commission on
Organization of the Executive Branch of the Government, Intelligence
Activities: A Report to the Congress 29-30 (1955).
At least two aspects of the legislative history shed light on the
scope of the protection Congress afforded to "intelligence sources and
methods." First, Congress was well aware that the CIA would derive
intelligence from a large number of diverse sources. Congress created
the CIA because it envisioned that the government would have to
collect and analyze a "mass of information" in order to survive in the
postwar world. See S. Rep. 239, supra, at 2 ("(T)o meet the future
with confidence, we must make certain * * * that a central
intelligence agency collects and analyzes that mass of information
without which the Government cannot either maintain peace or wage war
successfully"). See also 93 Cong. Rec. 9397 (1947) (remarks of Rep.
Wadsworth) ("The function of that agency is to constitute itself as a
gathering point for information coming from all over the world through
all kinds of channels."); National Defense Establishment: Hearings
on S. 758 Before the Senate Comm. on Armed Services, 80th Cong., 1st
Sess., Pt. 3, at 669 (1947) (statement of Charles S. Cheston, former
military intelligence official) (The agency must have "authority to
analyze and correlate information from all sources.") (hereinafter
cited as Senate Hearings); National Security Act of 1947: Hearings
on H.R. 2319 Before the House Comm. on Expenditures in the Executive
Departments, 80th Cong., 1st Sess. 112 (1947) (remarks of Rep. Boggs)
(the Director of Central Intelligence "is dealing with all the
information and the evaluation of that information, from wherever we
can get it") (hereinafter cited as House Hearings); Senate Hearings,
supra, at 132 (statement of Fleet Admiral Nimitz) ("(T)he Central
Intelligence Agency (is) charged with responsibility for collection of
information from all available sources * * *. (I)ntelligence is a
composite of authenticated and evaluated information covering not only
the armed forces establishment of a possible enemy, but also his
industrial capacity, racial traits, religious beliefs, and other
related aspects."); id. at 497 (statement of General Vandenberg,
Director of Central Intelligence Group) ("Collection in the field of
foreign intelligence consists of securing all possible data pertaining
to foreign governments or the national defense and security of the
United States.").
Congress was also advised of the extraordinary diversity of
intelligence sources. The classic secret agent, Congress was told, is
only one such source. Allen W. Dulles, an important figure in wartime
military intelligence who subsequently became Director of Central
Intelligence, explained that "American businessmen and American
professors and Americans of all types and descriptions who travel
around the world are one of the greatest repositories of intelligence
that we have." National Security Act of 1947: Hearings on H.R. 2319
Before the House Comm. on Expenditures in the Executive Departments,
80th Cong., 1st Sess. 22 (June 27, 1947) (published 1982) (hereinafter
cited as Secret House Hearings); /3/ see id. at 28. Another
high-ranking intelligence official emphasized "the great open sources
of information * * * such things as books, magazines, technical and
scientific surveys, photographs, commercial analyses, newspapers, and
radio broadcasts, and general information from people with a knowledge
of affairs abroad" (Senate Hearings, supra, at 492 (statement of
General Vandenberg)).
Second, Congress was acutely aware of the importance of secrecy.
See Snepp v. United States, 444 U.S. 507, 512 (1980) ("The continued
availability of * * * (intelligence) sources depends upon the CIA's
ability to guarantee the security of information that might compromise
them and even endanger the(ir) personal safety."). Congress was
advised in graphic terms, by high-ranking intelligence officials, of
the deadly peril that faced intelligence sources whose identities were
revealed. See Secret House Hearings, supra, at 10-11 (statement of
General Vandenberg); id. at 20 (statement of Allen W. Dulles). And
Congress was told that even American citizens who supply intelligence
information "close up like a clam" unless they can hold the government
"responsible to keep the complete security of the information they
turn over" (Secret House Hearings, supra, at 22 (statement of Allen W.
Dulles)). /4/ The committees of both Houses went into executive
session to consider the proposed legislation; the Secret House
Hearings, supra, were declassified only in 1982. See id. at v-viii;
S. Rep. 239, supra, at 1. A member of the House committee stated on
the floor (93 Cong. Rec. 9444 (1947) (statement of Rep. Manasco)):
We were sworn to secrecy and I hesitate to even discuss this
section because I am afraid I might say something, because the
Congressional Record is a public record, and divulge some
information here that would give aid and comfort to any
potential enemy we have * * *. The things we say here today,
the language we change, might endanger the lives of some
American citizens in the future.
We know of no suggestion in the legislative history that Congress
thought the CIA might be too secretive.
Against this background, Congress specified that the Director of
Central Intelligence is responsible for "protecting intelligence
sources and methods from unauthorized disclosure"; that language did
not appear in the Administration draft. Compare H.R. 2319, 80th
Cong., 1st Sess. Sec. 202 (1947), with H.R. 4214, 80th Cong., 1st
Sess. Sec. 105(d)(3) (1947); see H.R. Rep. 961, supra, at 3-4. /5/
Nothing in this legislative history remotely indicates that Congress
intended Section 403(d)(3) or its crucial language -- "intelligence
sources and methods" -- to be construed narrowly or in a way that
would promote the disclosure of intelligence sources to the public.
Nor is there any basis for concluding that Congress was concerned to
restrict the authority of the Director of Central Intelligence to
withhold information. Congress was advised that the CIA would draw
upon a large and diverse group of intelligence sources; Congress was
clearly aware that secrecy was extremely important; and it granted
the Director of Central Intelligence unqualified authority to protect
the secrecy of sources. Congress plainly intended the Director's
authority to have the broadest scope.
3. The court of appeals appeared to proceed from the premise that
the term "intelligence sources" must be given a narrow meaning in
order to avoid "broad agency discretion" (Pet. App. 45a; see id. at
50a) and thereby to serve what the court of appeals considered to be
the pro-disclosure "spirit" of the FOIA (see, e.g., id. at 7a, 42a;
see also id. at 41a-45a, 47a, 50a). This approach is fundamentally
misconceived. The disclosure of intelligence sources is governed by
Section 403(d)(3), not by the substantive standards or "spirit" of the
FOIA.
The purpose of Exemption 3 is to make it clear that the FOIA does
not repeal by implication certain other statutes. See H.R. Rep. 1497,
89th Cong., 2d Sess. 10 (1966). As we noted, it is beyond dispute
that Section 403(d)(3) is one of the statutes identified by Exemption
3. The legislative history is explicit that Exemption 3
"incorporat(es) by reference exemptions contained in (the) * * *
statutes" it identifies. H.R. Conf. Rep. 94-1441, 94th Cong., 2d
Sess. 14 (1976); see id. at 25. /6/ Thus, the only question in this
case is the interpretation of the term "intelligence sources and
methods" in Section 403(d)(3). The supposed pro-disclosure philosophy
of the FOIA is quite irrelevant to that question; as we have shown,
Section 403(d)(3) was enacted in a climate far different from that
which prevailed at the time the FOIA was enacted. The court of
appeals' anachronistic attempt to impute its own skepticism about CIA
secrecy (a skepticism it also attributed to the Congress that enacted
the FOIA) to the post-war Congress that establihsed the Agency appears
to be the fundamental error that led to its wholly unjustifiable
definition of "intelligence sources."
The court of appeals offered other justifications for narrowing the
explicit protection afforded to intelligence sources by Section
403(d)(3), but none of them is any more substantial. For example, the
court relied on a provision of the Central Intelligence Agency Act of
1949, 50 U.S.C. 403g, which provides in part:
In the interests of the security of the foreign intelligence
activities of the United States and in order further to
implement the proviso of section 403(d)(3) of this title that
the Director of Central Intelligence shall be responsible for
protecting intelligence sources and methods from unauthorized
disclosure, the Agency shall be exempted from the provisions of
(5 U.S.C. (1958 ed.) 654) /7/ and the provisions of any other
law which require the publication or disclosure of the
organization, functions, names, official titles, salaries, or
numbers of personnel employed by the Agency.
The court of appeals stated that "Section 403g provides specific
protection for most of the CIA activities and contractual
relationships about which the Agency has expressed greatest concern *
* * (and) evinces a congressional awareness that Section 403(d)(3) * *
* would require construction and interpretation limiting executive
discretion to withhold; otherwise it would have felt no need to
'implement' the original proviso by listing the specific matters
exempted from disclosure under Section 403g." Pet. App. 49a-50a.
This reasoning is erroneous in many ways. Section 403g does not in
fact protect "most of the CIA activities * * * about which the Agency
has expressed greatest concern." Section 403g applies only to
"personnel employed by" the CIA, and many important intelligence
sources might not be regarded as personnel employed by the CIA; one
example is Americans travelling abroad, who, Director Dulles advised
Congress, "are one of the greatest repositories of intelligence that
we have" (Secret House Hearings, supra, at 22). Other sources, as
well, furnish information simply because they wish to aid the Agency
or the United States. But the extent to which Section 403g protects
intelligence sources is, in any event, irrelevant. Congress enacted
both Section 403(d)(3) and Section 403g, and it cannot be seriously
disputed that both Section 403g and Section 403(d)(3) are included
within Exemption 3. See page 15, supra; National Commission, 576
F.2d at 1376. Section 403(d)(3) should not be given an artificially
narrow interpretation that finds no support in its language or
legislative history merely because Section 403g also exists to protect
what Congress described as "the confidential nature of the Agency's
functions" (H.R. Rep. 160, 81st Cong., 1st Sess. 6-7 (1949); see S.
Rep. 106, 81st Cong., 1st Sess. 1 (1949)). See also Baker v. CIA, 580
F.2d 664, 667-669 (D.C. Cir. 1978). Cf. SEC v. National Securities,
Inc., 393 U.S. 453, 468 (1969).
The court of appeals' suggestion that the enactment of Section 403g
reveals Congress's awareness that Section 403(d)(3) "require(s)
construction and interpretation limiting executive discretion to
withhold" (Pet. App. 49a-50a) is similarly a non sequitur. The court
of appeals would read Section 403g as if it superseded, narrowed, or
exhausted the content of Section 403(d)(3), but what Section 403g says
is that it "further * * * implement(s)" Section 403(d)(3). The most
likely explanation of Congress's decision to enact Section 403g is
that in 1949, there were other statutes that might have been construed
to require the disclosure of information about CIA employees -- 5
U.S.C. (1958 ed.) 654, which is mentioned in Section 403g but has
since been repealed, was apparently the statute Congress had in mind
(see page 24 note 7, supra) -- and Congress thought it advisable
explicitly to exempt the Agency from such statutes. But before the
FOIA was enacted, there was no statute that could have been thought to
require the disclosure of intelligence sources generally. When
Congress enacted the FOIA, it included Exemption 3 and, as we noted,
specified that Section 403(d)(3) is an Exemption 3 statute. Nothing
in this pattern of congressional activity suggests that the protection
that Exemption 3 and Section 403(d)(3) afford to intelligence sources
should be given less than its full, literal meaning. /8/
Finally, the court of appeals stated that its definition of
"intelligence sources" was justified because when Congress enacted
Section 403(d)(3), "(s)ecrecy seems to have been a concern only
insofar as it was pertinent to protection of the national security.
Analysis should therefore focus on the practical necessity of secrecy.
* * * Section 403(d)(3) must be interpreted in functional terms"
(Pet. App. 50a). As we will explain, the court of appeals' definition
of intelligence sources reveals that the court was ill-informed about
the ways in which secrecy is "functional" in the intelligence area and
the reasons that secrecy can be a "practical necessity." See pages
29-41, infra. But the more fundamental point is that Congress has
already determined the extent to which secrecy is a "practical
necessity" and is "pertinent to protection of the national security";
Congress's judgment is relfected in its unqualified mandate to the
Director to "protect() intelligence sources and methods from
unauthorized disclosure." It was not open to the court of appeals to
second-guess Congress by deciding that it is only sometimes necessary
to protect intelligence sources from disclosure.
4. Contrary to some of the suggestions made by respondents and the
court of appeals (see, e.g., Memo. in Opp. 5, 9, 10-12; Pet. App.
45a, 47a, 50a), interpreting Section 403(d)(3) according to its plain
meaning will not give the CIA unlimited authority to withhold
documents requested under the FOIA. The CIA may engage only in
authorized intelligence activities. See 50 U.S.C. 403(d); Exec.
Order No. 12,333, Section 1.51, 46 Fed. Reg. 59941, 59944 (1981).
Moreover, the Agency's intelligence-gathering operations are subject
to a number of statutory restrictions. See 50 U.S.C. 403(d)(3)
("(T)he Agency shall have no police, subp(o)ena, law-enforcement
powers, or internal-security functions.").
This case, however, does not now involve any dispute over the
meaning of the term "intelligence" or the breadth of the Agency's
intelligence function. /9/ As we have noted, the district court ruled
that the Agency "could reasonably determine that (the MKULTRA)
research was needed for its intelligence function" (Pet. App.
22a-23a), and the court of appeals did not disturb that ruling. The
only question, therefore, is whether Section 403(d)(3) protects from
disclosure a "source" of information that is acknowledged to be
necessary for the Agency's "intelligence" function. That question is
answered by the plain language of the statute.
B. The Court of Appeals' Definition of "Intelligence Sources"
Produces Results That Congress Could Not Have Intended
The severe difficulties that would be created if the court of
appeals' definition of "intelligence sources" were routinely applied
in FOIA cases are a further reason for interpreting that term
according to its plain meaning. The court of appeals' definition
would require disclosures that could be extremely damaging to the
CIA's ability to carry out its mission, and Congress could not have
intended to permit such disclosures. Indeed, there is specific
evidence in the legislative history of Section 403(d)(3) that Congress
intended to preclude many of the kinds of disclosures that would be
required by the court of appeals' decision.
But the fact that the court of appeals' definition of "intelligence
sources" leads to results that are obviously inconsistent with
Congress's intentions is not just an indictment of that court's
particular formulation; it is a further illustration of why Congress
chose to give unqualified protection to "intelligence sources and
methods." The court of appeals, notwithstanding its concern with the
"practical necessity of secrecy" and its effort to devise a
"functional" definition, did not recognize that its definition
produces wholly unacceptable results when applied to many categories
of intelligence sources. Nor did the court of appeals fully
understand the manifold and complex ways in which secrecy is vital to
intelligence gathering. Congress protected "intelligence sources and
methods" without qualification, and the profound shortcomings of the
court of appeals' definition suggest that a narrower protection can
risk interfering with the intelligence-gathering mission of the CIA in
important ways that are not always apparent.
1. The court of appeals grievously underestimated the importance of
providing intelligence sources with an assurance of confidentiality
that is as absolute as possible. Under the court of appeals'
appraoch, the CIA will be forced to disclose an intelligence source
whenever a court determines, after the fact, that the Agency could
have obtained the kind of information supplied by the source without
promising confidentiality. Indeed, the court of appeals carried this
approach to the point of holding that the Agency will be required to
betray an explicit promise of confidentiality if a court determines
that the promise was not necessary -- or, in the court of appeals'
words, if a court decides that the intelligence source to whom the
promise was given was "unreasonably and atypically leery" of
cooperating with the CIA (Pet. App. 6a). /10/
Few things will have as devastating an impact on the CIA's ability
to carry out its mission as forced disclosure of the identities of its
sources. "The Government has a compelling interest in protecting both
the secrecy of information important to our national security and the
appearance of confidentiality so essential to the effective operation
of our foreign intelligence service." Snepp, 444 U.S. at 509 n.3,
quoted in Haig v. Agee, 453 U.S. 280, 307 (1981)(emphasis added). If
potential intelligence sources begin to perceive that the Agency will
be unable to maintain the confidentiality of its relationship to them,
many can be expected to refuse to supply information to the Agency in
the first place.
This will be true no matter how rational or well-founded their
perception is. As this Court has recognized in both the intelligence
area and other contexts, what is crucial is not just whether the
government has in fact betrayed a confidence but "the appearance that
confidentiality ha(s) been breached" or might be breached (Baldrige v.
Shapiro, 455 U.S. 345, 361 n.17 (1982)(emphasis in original)). "An
uncertain privilege, or one which purports to be certain but results
in widely varying applications by the courts, is little better than no
privilege at all" (Upjohn Co. v. United States, 449 U.S. 383, 393
(1981)). Certainty is especially vital in the intelligence area,
where the risks are enormous: if an intelligence source's cooperation
becomes known -- indeed, even if it is revealed that he cooperated
with the CIA in some apparently innocuous way -- he may face not only
great embarrassment but far more severe consequences. See Haig v.
Agee, 453 U.S. at 285 & n.7; J.A. 44-46 (affidavit of Louis J. Dube).
Consequently, even if there is only a relatively small probability
that a court will order disclosure of a source's identity, that will
be of little comfort to the source. In order to induce him to
cooperate, the CIA will have to provide as absolute an assurance of
confidentiality as it possibly can. "The continued availability of *
* * (intelligence) sources depends upon the CIA's ability to guarantee
the security of information that might compromise them and even danger
(their) personal safety" (Snepp, 444 U.S. at 512). See also J.A.
20-21. Cf. Weber Aircraft Corp., slip op. 10-11 n.23; Williams v.
FBI, 730 F.2d 882, 885-886 (2d Cir. 1984).
Nor will it reassure a potential intelligence source to learn that
a court will order his identity revealed only after examining the
facts of the case and determining that he was "atypically or
unreasonably leery," that the Agency could have obtained the same
information from another source without guaranteeing confidentiality,
/11/ or that some similar standard was met. An intelligence source
will "not be concerned with the underlying rationale for disclosure
of" his cooperation with the CIA if his cooperation was secured "under
assurances of confidentiality" (Baldrige, 455 U.S. at 361). Moreover,
a court's decision whether an intelligence source will be harmed if
his identity is revealed will often require complex political,
historical, and psychological judgments, sometimes about societies
very different from our own. /12/ There is no reason for anyone --
especially a potential intelligence source whose life may be at stake
-- to have great confidence in a court's ability to make those
judgments correctly. Indeed, many potential intelligence sources,
especially those who are not American citizens, are likely to perceive
courts as unpredictable institutions that are influenced by concerns
that have little in common with the world in which the potential
source and his CIA contact must operate. A potential source is also
likely to realize that a court's decision whether to reveal his
cooperation with the agency may occur well in the future, at a time
when the source's concern for confidentiality may seem less
understandable to everyone except the source himself. See also Pet.
App. 92a (affidavit of Director of Central Intelligence Turner) ("(A)
unilateral breach of confidentiality and trust by the United States
Government will be viewed as an arrogant disregard for the lives or
safety or reputations of those who have contributed to our
intelligence activities.").
2. The court of appeals also failed to recognize that when Congress
protected "intelligence sources" from disclosure, it was not simply
protecting sources of secret intelligence information; as we have
noted, Congress was aware that secret agents are not the most typical
intelligence sources. Many important sources provide the Agency with
information that members of the public could, at least in theory, also
obtain. But under the court of appeals' definition of "intelligence
sources," the Agency cannot withhold the identity of a source of
intelligence information if that information is also publicly
available, because the Agency can obtain such information without
guaranteeing confidentiality. This approach is divorced from the
realities of intelligence work and is demonstrably inconsistent with
Congress's understanding of the purposes of Section 403(d)(3).
First, as Judge Bork explained, another government can learn a
great deal about "what subjects (are) of interest to the CIA" by
examining the public sources of information that the Agency is
exploiting: "One need not be an expert in intelligence work to know
that it is often possible to deduce what a person is doing, thinking,
or planning by knowing what question he is asking or what information
he is gathering. That is true even when the answers and information
are publicly available. The mere fact that the CIA pursues certain
inquiries tells our adversaries much that there is no reason to think
Congress intended them to know." Pet. App. 15a.
The facts of this case themselves suggest an example. When the CIA
decided to investigate "brainwashing" and the countermeasures that
might be taken, it might have turned to sources, such as journals and
ongoing research projects, that are available to the public. But a
foreign government that learned the sources that the Agency was
consulting would have been able to infer both the general nature of
the CIA's project and the directions that its inquiry was taking. See
Pet. App. 89a-90a (affidavit of Director of Central Intelligence
Turner) ("Throughout the course of the Project, CIA involvement or
association with the research was concealed in order to avoid
stimulating the interest of hostile countries in the same research
areas."). /13/
Similarly, the court of appeals, in its first opinion, suggested
that the excessive breadth of the CIA's proposed definition of
"intelligence sources" was revealed by the Agency's acknowledgment
that its definition would "apply even to periodicals -- including
Pravda and the New York Times -- from which (the Agency) culls
information that informs its view of foreign nations and their policy
intentions" (Pet. App. 46a (footnote omitted)). But the disclosure
that the CIA consults Pravda and the New York Times is innocuous not
because those periodicals are publicly available but because it is the
disclosure of a fact -- the fact that the Agency consults these
newspapers -- that is already commonly assumed to be true. An obscure
Eastern European technical journal might also be available to members
of the public; but disclosure of the fact that the CIA subscribes to
that journal could easily thwart the CIA's efforts to exploit its
value as an intelligence source.
In addition, much information that is publicly available in
principle can be difficult to obtain from public sources, and far more
easily obtained from sources whose identity both the source and the
Agency might legitimately wish to protect. An example of such
information might be details of the travel plans or financial
transactions of an individual whom the CIA is observing. Such
information is theoretically in the public domain, but as a practical
matter the Agency may have to obtain it from a source who would cease
to provide it if his identity were revealed. The court of appeals
would apparently require the disclosure of such a source's identity --
since the information was available by means that did not involve a
guarantee of confidentiality -- thereby impairing the Agency's ability
to recruit such sources in the future.
Finally, the court of appeals apparently failed to recognize that
many intelligence sources will provide the CIA with both highly
sensitive information -- of a kind that would never be supplied
without a promise of confidentiality -- and public or "innocuous"
information that the Agency could have obtained elsewhere without
guaranteeing secrecy. For example, a source in a foreign nation might
supply, in addition to much sensitive information, a report of a crop
failure that American journalists also learned about and reported in
newspapers. If an FOIA request were then filed for all sources of
information about the crop failure, the court of appeals' definition
might be interpreted to require the Agency to disclose its
relationship with the sensitive foreign source -- even though that
disclosure would be likely to damage both the Agency and the source.
/14/
In these respects, as well, the court of appeals' definition is
harmful not only because it will force certain disclosures but because
of the prospective effect it will have on the CIA's operations. If
the Agency knows that it will be required to reveal its sources of
public information in response to a proper FOIA request, it can be
expected to alter its techniques so as to reduce the damage that such
a disclosure might cause. In this way, the court of appeals' failure
simply to protect all "intelligence sources" would force the CIA to
depart from what it considers the best use of intelligence sources out
of concern that some of those sources might become public.
The legislative history of Section 403(d)(3) confirms what is
obvious in any event -- that Congress would never have countenanced
the results that the court of appeals' approach produces. As we have
noted, Congress was specifically made aware that many -- indeed most
-- "intelligence sources" provide information that is, at least in
principle, publicly available; nonetheless, Congress gave no
indication that it intended to exclude such sources from the
protection of Section 403(d)(3). For example, General Vandenberg, who
had been Director of the Central Intelligence Group, the CIA's
predecessor (see 11 Fed. Reg. 1337 (1946); pages 21-22 note 5,
supra), explained to Congress that "roughly 80 percent of intelligence
should normally be based" on "the great open sources of information *
* * such things as books, magazines, technical and scientific surveys,
photographs, commercial analyses, newspapers, and radio broadcasts,
and general information from people with a knowledge of affairs
abroad." Senate Hearings, supra, at 492. Indeed, General Vandenberg
asserted that this kind of intelligence had been neglected before
World War II and urged that it be a principal concern of the post-war
agency (ibid.). Essentially the same points were made by Director
Dulles. See id. at 526; Secret House Hearings, supra, at 22.
Thus, when Congress gave the Director of Central Intelligence
unequivocal authority to "protect() intelligence sources and methods
from unauthorized disclosure," it had previously been informed by the
Director's predecessor and the future Director that the great
preponderance of intelligence sources would be public sources. In
these circumstances, Congress must have intended the Director's
authority to extend to public sources.
Similarly, Admiral Inglis, then Chief of Naval Intelligence,
testified that intelligence agents in foreign countries are often used
to "confirm or not what we have deduced from * * * Russian propaganda
broadcasts" (Secret House Hearings, supra, at 63). Congress,
therefore, unlike the court of appeals, was aware that highly secret
intelligence sources will sometimes also report information that the
CIA can obtain, or has obtained, from open sources. It is
inconceivable that Congress, after having received Admiral Inglis's
testimony, would have decided to deny the Director of Central
Intelligence the authority to protect sources who function in this
way. /15/
3. In sum, as Congress knew when it enacted Section 403(d)(3) in
1947, intelligence sources can take a variety of forms: the secret
agency; a cooperative foreign citizen or an American travelling
abroad; an unwitting source who does not realize he is conveying
information to the CIA and would stop conveying it if he did; or a
publicly available periodical or radio broadcast. And Congress was
aware that these sources could provide many different kinds of
information, ranging from the most sensitive secrets to apparently
innocuous facts from which Agency experts might derive an important
lead.
Secrecy is important in each of these contexts. Not only is
secrecy necessary to protect a source supplying sensitive information;
the Agency must also protect its reputation for being able to
guarantee confidentiality to potential sources. In addition, the CIA
must ensure that it can continue to exploit unwitting sources; and in
the case of public sources of information, secrecy is important to
avoid revealing to observers the subjects in which the Agency is
interested.
Congress, acting in light of these complex realities of
intelligence gathering, did not attempt to delineate the categories of
intelligence sources or information that were to remain confidential.
It simply gave the Director of Central Intelligence unqualified
authority to "protect() intelligence sources and methods from
unauthorized disclosure." There is no indication that Congress
intended these terms to have anything other than their literal
meaning. Accordingly, the court of appeals erred when it attempted to
devise a narrower definition.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
REX E. LEE
Solicitor General
RICHARD K. WILLARD
Acting Assistant Attorney General
KENNETH S. GELLER
Deputy Solicitor General
DAVID A. STRAUSS
Assistant to the Solicitor General
ROBERT E. KOPP
LEONARD SCHAITMAN
Attorneys
STANLEY SPORKIN
General Counsel
EDWARD PAGE MOFFETT
Attorney Central Intelligence Agency
JUNE 1984
/1/ "I C.A. App." refers to the Joint Appendix filed in the court
of appeals on the first appeal, court of appeals docket numbers
79-2203 and 79-2104. "II C.A. App." refers to the Joint Appendix
filed on the second appeal, court of appeals docket numbers 82-1945
and 82-1961.
/2/ The CIA did release these names to congressional committees
investigating MKULTRA (see Project MKULTRA Hearing, supra, at 8, 13,
49), but it requested that the committees keep the names confidential,
and the committees honored the request.
/3/ The committees of both Houses conducted hearings in executive
session. As we note below in text, the executive session hearings of
the House committee were only recently declassified and published.
/4/ Since the earliest days of the Republic, secrecy has been
recognized as vital to the successful gathering of intelligence. In a
letter of July 26, 1797, issuing orders for an intelligence mission,
George Washington wrote to Colonel Elias Dayton: "The necessity of
procuring good intelligence, is apparent and need not be further
urged. All that remains for me to add is, that you keep the whole
matter as secret as possible. For upon secrecy, success depends in
most Enterprises of the kind, and for want of it they are generally
defeated * * *." The Writings of George Washington 478-479 (J.
Fitzpatrick ed. 1933). See also United States v. Curtiss-Wright
Export Corp., 299 U.S. 304, 320 (1936).
/5/ The phrase "protecting intelligence sources and methods" was
derived from the Presidential Directive of Jan. 22, 1946 (11 Fed. Reg.
1337), which was incorporated by reference in the Administration bill
(H.R. 2319, 80th Cong., 1st Sess. Sec. 202 (1947)). This derivation
scarcely suggests a narrow construction; the directive was issued by
President Truman shortly after the war to establish the National
Intelligence Agency and the Central Intelligence Group and to charge
these predecessors of the CIA with "assur(ing) the most effective
accomplishment of the intelligence mission related to the national
security" (11 Fed. Reg. 1337 (1946)). They were accordingly made
"responsible for fully protecting intelligence sources and methods"
(id. at 1339).
/6/ That is also how this Court has interpreted Exemption 3. In
Baldrige v. Shapiro, 455 U.S. 345 (1982), the Court first considered
whether 13 U.S.C. 8(b) and 9(a) were Exemption 3 statutes (455 U.S. at
354-355); after determining that they were, the Court turned to the
language and legislative history of those provisions and did not
further consider the FOIA (id. at 355-359).
Similarly, in Consumer Product Safety Commission v. GTE Sylvania,
Inc., supra, the Court, upon determining that 15 U.S.C. 2055(b)(1) was
an Exemption 3 statute, had no difficulty holding that the time limits
governing disclosure under that statute -- not the more restrictive
time limits of the FOIA -- would control whenever a request for
information covered by Section 2055(b)(1) was made. See 447 U.S. at
121-122. As this holding reflects, once a statute is determined to be
an Exemption 3 statute, the entire regime it establishes to govern
disclosures -- its time limits, its substantive criteria, and its
"spirit" -- supersedes the standards found in the FOIA.
/7/ This statute required the Civil Service Commission to compile
an Official Register of the United States, "which shall contain a full
and complete list of all persons occupying administrative and
supervisory positions in the legislative, executive, and judicial
branches of the Government * * *. The register shall show the name;
official title; salary, compensation, and emoluments; legal
residence and place of employment for each person listed therein * *
*." This provision was repealed by the Act of July 12, 1960, Pub. L.
No. 86-626, Sec. 101, 74 Stat. 427.
/8/ The court of appeals also stated (Pet. App. 49a; see also id.
at 11a n.13) that the existence of Exemption 1 of the FOIA, 5 U.S.C.
552(b)(1), which applies to properly classified documents, warrants a
narrowed interpretation of Section 403(d)(3). (The identities of the
MKULTRA researchers are not classified.) This approach is inconsistent
even with prior precedent in the District of Columbia Circuit. See
Gardels, 689 F.2d at 1107. It is true that the identities of
intelligence sources will frequently be classified information, but
that does not affect the interpretation of the independent exemption
provided by Exemption 3 and Section 403(d)(3); as this Court has
recently ruled, the interpretation of an FOIA exemption should not be
distorted because a different exemption may also apply to some of the
same documents. See FBI v. Abramson, 456 U.S. 615, 629-630 (1982).
See also pages 2-4 of the Reply Brief for the Petitioners filed in
support of the petition for a writ of certiorari.
/9/ Of course, the Agency's determination that a particular person
or entity is a source of intelligence information should be accorded
great deference by a reviewing court (see, e.g., Halperin v. CIA, 629
F.2d 144, 148 (D.C. Cir. 1980); Gardels, 689 F.2d at 1104-1105), and,
as Judge Bork noted, the court should not be permitted to substitute
its judgment for that of the Director in the exercise of his sound
discretion (see Pet. App. 15a-16a).
/10/ The court of appeals' ruling that the Agency will sometimes be
required to betray explicit promises of confidentiality is
extraordinary. "Great nations, like great men, should keep their
word." FPC v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black,
J., dissenting), quoted in Heckler v. Mathews, No. 82-1050 (Mar. 5,
1984), slip op. 19.
In a sense, however, the court of appeals' requirement that the
Agency must be prepared to breach explicit promises of confidentiality
is only the tip of the iceberg; it reflects the deeper misconceptions
of the court of appeals' approach. The assurance of confidentiality
given to an intelligence source is seldom recorded in writing, and
often it is not even explicit. It is ususally so obvious to all
concerned that the source wants to remain confidential that no
explicit understanding is needed; an assurance of confidentiality is
implicit in the relationship between the Agency and the source. See
J.A. 17, 25-26 (affidavit of M. Corley Wonus). Cf. Londrigan v. FBI,
722 F.2d 840, 844-845 (D.C. Cir. 1983).
Indeed, an experienced CIA operations officer explained, in an
affidavit submitted in this case, that many sources would refuse to
memorialize an agreement of confidentiality because doing so would
create an additional document, linking them with the CIA, that might
fall into the wrong hands. See J.A. 43 (affidavit of Louis J. Dube).
For these reasons, the practical damage caused by the court of
appeals' definition would not be greately reduced even if it were
amended so as to require courts to honor fully explicit promises of
confidentiality.
/11/ There is, of course, no reason to believe that courts
generally have the expertise needed to determine whether the Agency
would have been able to obtain certain information without promising
confidentiality to a source.
/12/ In Fitzgibbon v. CIA, 578 F. Supp. 704 (D.D.C. 1983), motion
for reconsideration pending, for example, a district court applying
the court of appeals' definition of "intelligence sources" has ordered
the disclosure of CIA sources in the Dominican Republic on the basis
of judgments such as these: only the Trujillo regime, which has been
deposed, would have taken action against these sources (id. at 719
n.50); the current regime is "stable" and "has disavowed all ties
with Trujillo's politics, attitudes and methods" (ibid.); since
Trujillo and his police chief are dead, the sources need not fear
retaliation from individuals sympathetic to Trujillo (id. at 720
n.60); and indeed "(m)any of the sources * * * far from being
embarrassed by revelation, might well be thought to be popular,
particularly in the Dominican Republic, for having helped, no matter
how slightly, to work against a dictator now unpopular and scorned"
(id. at 721 n.61).
Leading experts on the politics and culture of a society are likely
to differ on the extent to which generalizations like these are
accurate. Plainly a court should not be in a position of having to
make such judgments.
/13/ For example, the district court discussed several MKULTRA
subprojects involving various kinds of scientific research (Pet. App.
25a-26a) and concluded that the CIA was required to disclose the
persons who conducted this research because "(i)t seems clear that
such research, which goes on constantly at many places, could have
been done without a guarantee of confidentiality" (id. at 26a). The
court of appeals specifically approved this reasoning as a correct
application of its definition of "intelligence sources." Id. at 5a.
It appears that neither court considered the possibility that a
foreign power might have been interested in learning that the CIA was
conducting research in these areas.
/14/ A district court applying the court of appeals' definition has
recently interpreted it in precisely this way (Fitzgibbon v. CIA, 578
F. Supp. 704, 716 n.35 (D.D.C. 1983), motion for reconsideration
pending):
Under (the court of appeals' definition), a document
reporting on a conversation between a CIA agent and a source on
a wholly innocuous subject would not be protected even if the
source is a highly placed official of a government hostile to
the United States. Because of its innocuousness, the
information presumably could have been obtained from any number
of individuals without a promise of confidentiality * * *.
We do not acquiesce in this interpretation of the court of appeals'
opinion -- the district court in this case, for example, apparently
did not interpret the court of appeals' opinion in this way (see Pet.
App. 26a) -- but the opinion is susceptible of such a reading.
Obviously, even a possibility that such disclosures might occur would
seriously damage the government's ability to gather intelligence.
/15/ Moreover, the CIA obtains much valuable intelligence from
unwitting sources -- sources who reveal information to a person who
is, unbeknownst to the source, a CIA contact. A CIA operational
officer filed an affidavit in this case in which he used real examples
to explain how such sources are used (J.A. 47-48):
(a) (Some) (i)ntelligence sources * * * do not realize they
are intelligence sources. Such a source might, for example, be
a foreign official who regularly discusses official business
problems and concerns in candid terms with an old and trusted
confident who repeats such information to the CIA. If the
original source in such circumstances (learned that he was a
source as the result) * * * of an FOIA request, the relationship
between the source and his confidant would obviously be be
destroyed. A useful intelligence source would likely refuse to
provide any additional information and the intermediary would
probably suffer some form of retaliation for having betrayed the
source's trust.
(b) (Some) (i)ntelligence sources * * * do not know they are
reporting to the CIA. In such a case, the intelligence source
might be knowledgeable of the plans and activities of a
terrorist group or a narcotics smuggling ring of which he was a
member. He might, in fact, believe he was reporting to an
individual who was intent upon negating the efforts of CIA to
learn of the plans and activities of such organizations. Should
an FOIA request (cause) * * * the source (to learn of his
status) * * *, this source would obviously cease providing
information. No doubt the intermediary who had passed the
information along to CIA would suffer severe consequences.
* * * * *
Such circumstances described above * * * are neither
imaginary nor uncommon * * *.
It is unclear how the court of appeals' definition should apply to
unwitting sources; the district court ruled that unwitting sources
necessarily cannot be kept confidential by the CIA. See Pet. App. 24a
("(T)he fact that the CIA has maintained that even the names of the
unwitting researchers must remain undisclosed impeaches its
contentions with respect to those researchers who were witting of CIA
involvement").
APPENDIX